Isles & Nelissen

Case [2021] FedCFamC1F 295

Federal Circuit and Family Court of Australia

(DIVISION 1)

Isles & Nelissen [2021] FedCFamC1F 295

File number(s): LNC 376 of 2017
Judgment of: McGUIRE J
Date of judgment: 20 December 2021
Catchwords: FAMILY LAW – CHILDREN – best interests of the children – with whom the children shall live and spend time – where the children enjoy a meaningful relationship with both parents – where there are allegations of child sexual abuse by the father – where final parenting orders were made by consent in September 2020 providing for the children to live with the mother and spend time with the father on a stage basis such time initially being supervised but culminating in the children spending unsupervised time with the father – where there are allegations of alienation by the mother – unacceptable risk considered – tendency evidence considered – orders that children live with the mother – court unable to make positive findings of abuse – orders that children spend supervised time with the father in circumstances where the Court is satisfied the father poses an unacceptable risk to the children  
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2),(3), 61DA and 65DAA(3)

Evidence Act 1995 (Cth) 1995 ss 97 and 140

Cases cited:

Briginshaw v Briginshaw [1938] HCA 34

Ms AP & Ms AP (1998) FLC 91-979

N & S and the Separate Representative (1996) FLC92-655

Napier & Hepburn (2006) FLC 93-303

PST & CPR [2006] FMCAfam 36

Fitzwater & Fitzwater [2019] FamCAFC 251

Keane & Keane [2020] FamCA 99

IMM v The Queen (2016) 257 CLR 300

Velkoski v The Queen (2014) 45 VR 680 at 682

R v Ford (2009) 201 A Crim R 451

WK v SR (1997) FLC 92-787

Hughes v The Queen [2017] HCA 20

R v Bauer [2018] HCA 40

McPhillamy v The Queen [2018] HCA 52

Jones v Dunkel (1959) 101 CLR 298

Division: Division 1 First Instance
Number of paragraphs: 304
Date of hearing: 15, 16, 17, 18 and 19 February 2021, 3, 4, 5 and 6 May 2021 and 17, 18 and 19 August 2021
Counsel for the Applicant: Mr Murray
Solicitor for the Applicant: Jacobs Family Law
Counsel for 1st Respondent: Ms Sawyer
Solicitor for the Respondents: Ogilvie Jennings
Counsel for the 2nd respondent: Ms K Brown
Solicitor for the Respondents: Department of Communities
Counsel for the Independent Children's Lawyer: Mr Lewis
Solicitor for the Independent Children's Lawyer: David Lewis

ORDERS

LNC 376 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ISLES

Applicant
AND:

MS NELISSEN

First Respondent

DEPARTMENT OF COMMUNITIES

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCGUIRE J

DATE OF ORDER:

20 december 2021

THE COURT ORDERS THAT:

1.That all extant orders in respect of the children W born 2011, X born 2013, Y born 2014, and Z born 2015 ('the children') be discharged’.

2.That the mother, Ms Nelissen (‘the mother’) have sole parental responsibility for the children conditional upon providing notice to the father…

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AGLC
Isles & Nelissen [2021] FedCFamC1F 295
Case
[2021] FedCFamC1F 295
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, McGuire J addressed a contentious family law matter involving the parents, Mr Isles and Ms Nelissen. The core dispute centred on determining the living and visitation arrangements for their four children, W, X, Y, and Z. The mother alleged that the father had sexually abused one of the children, W, and also raised concerns about the father's past inappropriate sexual behaviour towards other minors. In response, the father alleged that the mother was manipulating the child's statements and attempting to alienate him from his father. The court was tasked with deciding whether there was sufficient evidence to make a positive finding of past sexual abuse by the father and whether it posed an unacceptable risk to the children in the future.

The court examined the consistency and coherence of the child's disclosures, alongside the tendency evidence presented by both parties. The mother and the second respondent argued that the father's past communications and possession of child exploitation material demonstrated a propensity for inappropriate sexual behaviour. However, the court found that while the child's disclosures were consistent and contained certain particulars, they lacked specificity in terms of time, which made it difficult to establish the allegations on the balance of probabilities. Additionally, the court could not rule out alternative innocent explanations for the child's statements. Consequently, the court could not make a positive finding that the father had sexually abused W.

Furthermore, the court found that there was insufficient evidence to support the father's claim that the mother had fabricated or manipulated the child's statements. The consistency of the child's disclosures and the lack of evidence of coaching or fabrication by the mother led the court to reject this allegation. However, the court did find that the father posed an unacceptable risk to the children, necessitating supervised contact. This conclusion was based on the broader context of the father's past behaviour and the need to protect the children from potential harm.

In conclusion, the court discharged all existing orders and made new orders providing for the children to live with the mother while spending supervised time with the father. The court also mandated that the children enrol in a Protective Behaviour Program and limited the father's communications with the children if he did not opt for supervised visits. The court granted liberty to the parties to apply for the removal of the requirement for supervision in the future. These orders were designed to ensure the safety and well-being of the children while allowing them to maintain a relationship with their father under controlled conditions.

Orders

Orders of the court

LNC 376 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ISLES

Applicant

AND:

MS NELISSEN

First Respondent

DEPARTMENT OF COMMUNITIES

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

MCGUIRE J

DATE OF ORDER:

20 december 2021

THE COURT ORDERS THAT:

1. That all extant orders in respect of the children W born 2011, X born 2013, Y born 2014, and Z born 2015 ('the children') be discharged’.

2. That the mother, Ms Nelissen (‘the mother’) have sole parental responsibility for the children conditional upon providing notice to the father of important and relevant medical and educational aspects regarding the children.

3. That the children live with the mother.

4. That the children spend time with the father Mr Isles (‘the father’) such to be professionally supervised at a Contact Centre at such times and frequency as the Contact Centre can accommodate with the father to be responsible for the payment of any costs associated with the provision of the supervised time–with.

5. That within twenty eight (28) days of the date of these orders the father shall give notice in writing to the solicitors on the record for the mother, the second respondent Department of Communities, and the Independent Children’s Lawyer that he intends to spend time with the children pursuant to these orders failing which time for the children with the father be reserved, but should the father give such notice then the parents shall prudently complete all interviews and preliminary procedures necessary for the children to spend time with the father at the Contact Centre.

6. That should the father elect to spend time with the children pursuant to these orders then the father and the children have reasonable communications by telephone or other media as agreed between the parents, but should the father not elect to spend time with the children pursuant to these orders then the father's communication with the children be limited to gifts and cards to each of the children on the occasion of their birthdays and at Christmas or otherwise as agreed between the parents from time to time in writing.

7. That the mother shall cause all of the children to enrol in and attend a Protective Behaviour Program as recommended by the Department of Community Services (Child Safety) until its completion.

8. That there be liberty to the parties, or any of them, to make application to this Court in respect of the removal of the requirement for supervision.

9. BY CONSENT the parents, their agents and servants be and are hereby restrained from bringing the children or any of them either directly or indirectly into contact with Ms L.

10. That a copy of these Orders and Reasons be provided to the Principal Registrar/CEO of the Federal Circuit and Family Court of Australia with reference to paragraphs 285 to 300 with a request that a copy of these Reasons and Orders be also provided to the Secretary of the Department of Justice.

11. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

12. That upon the making of these Orders all outstanding applications are dismissed except costs applications between the parties, if any, which are to be dealt with in accordance with the Family Law Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Counsel argues that W's disclosures have been consistent, coherent and truthful, and like the mother, the second respondent argues that the tendency evidence is significantly probative of the father having displayed inappropriate sexual interest in underage children including relatives. The emphasis of the orders sought by the second respondent is on the protection of the children including providing protective behaviour education and/or future review of initially strict supervision to determine the ability of the children to self-protect.Relevant background The parents were in a relationship from 2010 until March 2016. They both agree that their sexual relationship continued post their separation and, on the father's material, until about March 2018. The father says that in about March 2018 the mother proposed that he father a further child for her with the mother to assume the full commitment for the child, but allowing the child to have a relationship with the father. The father says that he rejected this proposal. The mother has now re-partnered with Mr N. They are the parents of an infant child. Mr N did not give evidence in these proceedings. There is no evidence that the father has re-partnered. The father is 36 years of age. He has a child Ms AP (DOB 2007) (aged 14 years) from a previous relationship with Ms AQ who gave evidence in this matter. The child Ms AP was the subject of Family Court parenting proceedings held over five days in 2012 before Cronin J. An issue raised before His Honour was that Ms AP returned from a contact visit with the father in January 2011 disclosing that 'a man had put a screwdriver in her bum'. Despite the lack of specificity by the child, attention centred on the father in respect of the allegation. Numerous other matters of tendency evidence were agitated before Cronin J being those same matters raised in these proceedings in respect of the father's propensity for inappropriate sexual behaviour. Specifically, Cronin J considered a series of MSN communications between the father and his male cousin “Mr E”, when the latter was fifteen years of age and the father was an adult. The messages were discovered by Ms AP’s mother, Ms AQ, and caused or contributed to the relationship breakdown. It was then and now asserted that the messages were indicative of a form of sexual relationship between the participants in the communications or a form of grooming. Secondly, there is evidence of the father in 2009 being convicted of being in possession of child exploitation material on a computer where he was subsequently acquitted on appeal but where he also conceded being in possession of other child exploitation material which was not the subject of the indictment. Cronin J was not prepared to make any findings of fact negative to the father in respect of the specific issues raised against him and made no findings of unacceptable risk. Orders were made for those parents to have equal shared parental responsibility for Ms AP and with the child to live with the mother but to spend time with the father each second weekend and for half of school holidays.

Evidence

Evidence Before The Court

I respectfully agree with the comments and analysis of both McEvoy J and Austin J as to the distinctions in the intellectual processes where the consideration of “unacceptable risk” is more nuanced than a straight forward finding of fact, being a past event, on the balance of probabilities where to give some empirical context, one can envisage a circumstance where there is a finding of past fact of sexual abuse but (almost perversely) there being no unacceptable risk into the future. Tendency Evidence The cases of the mother and the second respondent rely to a degree on the use of what might be termed 'tendency' or 'similar fact' evidence in respect of, firstly, the Court’s consideration of a positive finding that the father did sexually abuse W, or secondly, that the Court determine there is an unacceptable risk to the children in the father having unsupervised time with them. Counsel for the second respondent relies on the following tendency evidence in respect of what she urges to be a positive finding that the father has abused W: (a)Evidence of an historical sexual interest in young boys and included here are the MSN message exchanges between the father and his cousin Mr E, then a 15 year old minor, where it is open for the Court to find the content of such conversations to be of a sexual nature and a process of grooming of the child by the then adult father and shows a propensity in the father of sexual attraction to under age male relatives. (b)The father’s admission of the possession of child exploitation material on his computer, such being material in his possession contemporaneously with, but not the subject of the indictment on which he was found guilty but ultimately acquitted on Appeal, but again to show an interest of a sexual nature in under age male persons. In respect of a determination of the unacceptable risk, the tendency evidence sought to be relied upon includes the above but also other material of a broader context including: (a)That the father has been the subject of previous enquiry in these Courts in respect of his daughter Ms AP, being a child of a previous relationship where it was alleged that ‘a male’ (the father) had inserted a screwdriver into the child’s anus;(b)Evidence of the father's demeanour when the parents took X to a general practitioner suffering a form of vaginal discharge but specifically to the father's alleged defensive response when the doctor suggested the possibility of sexual interference; (c)An assertion by the mother that the father had conducted a homosexual affair during his relationship with the mother;(d)Evidence of the father's association with a person, Mr U, who was charged, convicted and imprisoned for a serious criminal offence and where the father is asserted to have been 'supportive' of Mr U during the process;(e)Evidence of historical inappropriate behaviour by the father in respect of another child 'AA';(f)Evidence of both W and X inappropriately touching genitalia of other students at their schools; and(g)An assertion of historical overt sexual behaviour by the father towards his own brother, Mr H.

Decision

Reasons for decision

The father was initially charged with rape of W. The DPP did not proceed on the indictment citing a lack of particularisation by W as to recall of any specific occasion of assault and where his recall was only of the more general nature. This lack of specificity is understandable given W’s young age but also relevant and important in my consideration as to whether I can make the positive findings urged on me by the mother and the second respondent Department.Conclusion as to positive findings Ultimately I am not persuaded that I am able to make a positive finding that the father did sexually abuse W as alleged where the onus sits with the respondents to the standard of on the balance of probabilities bearing in mind the gravity of the allegation and the consequences that flow. Whilst noting the context, consistency, and some coherent particularisations of W’s statements, the issue of alternative plausible innocent explanation remains where there is a lack of specificity of time in the disclosures. The disclosures were made to a skilful and professional interviewing officer on the occasion of the second interview but only after likely intervention by the mother between first and second interviews. The third interview where W discloses an 'apology' by the father did not take place until seven months after the alleged event which is a considerable time in the memory retention of a six or seven year old child and raises some doubts as to whether influence has been made on or to W’s statement or at least his memory retentions. The failure to call evidence from others present on 18 April and the issue of continuity raises doubts. I generally accept the submissions of counsel for the father as to issues with the 'significant probative value' of the tendency evidence relied upon. Consequently, I am unable to reach the required satisfaction on the balance of probabilities that the father perpetrated the act or acts of sexual abuse on W as alleged.Mother’s alleged fabrication or opportunistic manipulation of W’s disclosure I cannot find on the balance of probabilities that the mother has concocted or knowingly and opportunistically manipulated an innocent statement by W for her own ends. The onus here rests with the father to prove his assertion of fact on the balance of probabilities. Suffice to say that the consistency and provision of certain particulars in W's statements argue strongly against both concoction and manipulation. W understands that he suffers a loss, namely a more frequent and open relationship with his father, by reason of his consistent and continuing disclosures. Yet W has not recanted those disclosures. He gives some particulars in context such as the wearing pyjamas and that 'it’ does not occur in the shower. The experts, Mr J and Ms AB, have interviewed the mother and W and are dismissive of the father's assertion of fabrication. I had the advantage of seeing and hearing the mother give her evidence and her responses, whilst often unsophisticated, she did not give the impression of fabrication or coaching. Indeed, the mother’s very lack of sophistication argues against her ability to fabricate/manipulate matters over a period of now some three and one half years. Similarly, W’s failure to repeat his disclosure in the first police interview argues against coaching by any adult. Unacceptable risk

Ratio Decidendi

Legal Principle Established

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